April 14, 2011

Categories:

The First Amendment does not require that court hearings about the detention of material witnesses be open to the public, the Justice Department argued in an appeal heard Thursday that could have a significant impact on the ability of journalists, activists and defense attorneys to scrutinize prosecutors' use of the controversial material witness tactic across the country.

The dispute before the D.C. Circuit Thursday arises out of a criminal sex trafficking case. The defendant sentenced to 25 years in the case, Jaron Brice, sought access to records of court proceedings held in connection with prosecutors' requests to detain two of Brice's alleged victims as material witnesses. U.S. District Judge Rosemary Collyer denied the request.

Legal Times attended the arguments Thursday morning and reported that Brice's attorney, Jonathan Jeffress, argued that public scrutiny of material witness proceedings is appropriate because they involve weighty decisions about individuals' freedom.

“These are things the First Amendment right of access attaches extremely strongly to,” Jeffress said, according to Legal Times. “We’re talking about a process where people are detained, deprived of their liberty,” he said.

In court papers, the government argued that secrecy is often appropriate in material witness cases.

"It is not uncommon for courts to conduct closed material witness proceedings, because these proceedings often require the government to impart sensitive investigatory information," Justice Department attorney Matthew Nicholson said in legal papers. "Public access would often hinder, rather than facilitate, the function of material witness proceedings because it could reveal information about ongoing investigations and could discourage material witnesses from providing information about highly personal matters, as the witnesses did in this case."

You can view Brice's opening brief here and the government's brief here. They both cite court rulings on previous media challenges to secrecy in material witness cases. However, no media organization or group has appeared in Brice's case, despite its potential to set a precedent that could be highyl influential.

The lack of attention to the appeal could be because the briefs in the case were all under seal under last month. Brice's lawyers asked to unseal them in part so they could consult with outside counsel. The Justice Department did not object to the request.